Substantive equality

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Issues about substantive equality have been raised about the skin color of runway models at the Sao Paulo Fashion Week and in 2009 quotas requiring that at least 10 percent of models be "black or indigenous" were imposed as a substantive way to counteract a "bias towards white models", according to one account. Daiane Conterato2 crop.jpg
Issues about substantive equality have been raised about the skin color of runway models at the São Paulo Fashion Week and in 2009 quotas requiring that at least 10 percent of models be "black or indigenous" were imposed as a substantive way to counteract a "bias towards white models", according to one account.

Substantive equality is a substantive law on human rights that is concerned with equality of outcome for disadvantaged and marginalized people and groups and generally all subgroups in society. [2] [3] Scholars define substantive equality as an output or outcome of the policies, procedures, and practices used by nation states and private actors in addressing and preventing systemic discrimination. [4] [3] [5]

Contents

Substantive equality recognizes that the law must take elements such as discrimination, marginalization, and unequal distribution into account in order to achieve equal results for basic human rights, and access to goods and services. [3] Substantive equality is primarily achieved by implementing special measures [6] in order to assist or advance the lives of disadvantaged individuals. Such measures are aimed at ensuring that they are given the same outcomes as everyone else. [2]

Substantive equality is distinct from formal equal opportunity, which ensures equal opportunity based on meritocracy, but not equal outcomes for subgroups. [7]

Substantive equality can include affirmative action and quota systems including gender quotas and racial quotas.

Definition

Substantive equality has been criticized for not having a clear definition. Sandra Fredman has argued that substantive equality should be viewed as a four-dimensional concept of recognition, redistribution, participation, and transformation. [8] The redistributive dimension seeks to redress disadvantage through affirmative action, while the recognition dimension aims to promote the right to equality and identify the stereotypes, prejudice and violence that affect marginalized and disadvantaged individuals. [8] The participative dimension uses Ely's insight[ clarification needed ] to argue that judicial review must compensate marginalized individuals for their lack of political power. [9] [8] The participative dimension may also implement positive duties to ensure that all those affected by discrimination can be active members of society. [8] Lastly, the transformative dimension recognizes that equality is not achieved through equal treatment and that the societal structures which reinforce disadvantage and discrimination must be modified or transformed to accommodate difference. [8] The transformative dimension may use both positive and negative duties to redress disadvantage. [8] Fredman advocates for a four-dimensional approach to substantive equality as a way to address the criticisms and limitations it faces due to the lack of agreement on its definition by scholars. [8]

History

Aristotle was the first to make the connection between equality and justice. Aristotle Altemps Inv8575.jpg
Aristotle was the first to make the connection between equality and justice.

Aristotle was the first philosopher to articulate the connection between equality and justice. Aristotle believed equals were to be treated alike and unequals in an unlike manner. [10] Aristotle's notion of equality influenced the conception of formal equality in western jurisprudence. Formal equality advocates for the neutral treatment of all people based on the norms of the dominant group in society. [5] While first-wave feminism mostly advocated for formal equality, second-wave feminism promoted substantive equality. [11] During the late 20th century, substantive equality originated in opposition to formal equality. [10] This approach was inspired by early landmark constitutional cases in the United States, which broke away from formal approaches to equality in favor of a more substantive process. For example, in Brown v. Board of Education (1954) the US Supreme Court deemed it unlawful to segregate children's access to education on the basis of race. [10] This case was influential in transforming US anti-discrimination laws as it sought equitable outcomes for African Americans. [10] The substantive approach rejects earlier notions that claimed social, political, economic, and historical differences were a legitimate justification for the differential treatment of marginalised and disadvantaged groups in society. [12]

The substantive approach to equality is entrenched in human rights treaties, laws, and jurisprudence, which is then adopted and implemented by nation states and private actors. This is present in Article 14 of the European Convention on Human Rights (ECHR), which states that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. [8] : 275 

Article 14 prohibits discrimination in all aspects of public life on the basis of nominated attributes. Although Article 14 fails to mention discrimination on the basis of sexuality, age, and disability, recent developments in case law have shown that these grounds are illustrative but not exhaustive and can extend to include these factors. [8] Nation states that have signed and ratified the ECHR have an obligation to enact legislation preventing discrimination by using special measures to protect and advance the lives of disadvantaged and marginalized individuals in society. Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines special measures as, "securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination". [2] : 9 

These two articles are the fundamental principles that define the practice of substantive equality. Failure to enact substantive legislation by signatories may result in heavy sanctions and scrutiny from the international community.   

National approaches

Australia

Anti-discrimination laws in Australia are enacted by commonwealth, state, and territory parliaments and are then interpreted by courts and tribunals. [13] These laws are covered under the following four key commonwealth statutes: the Racial Discrimination Act (1975), Sex Discrimination Act (1984), Disability Discrimination Act (1992), and Age Discrimination Act (2004). [13]

All Australian states and territories have enacted a statute (variously called the anti-discrimination act) which prohibits all forms of discrimination in public life on the basis of nominated attributes identified in Article 26 of the International Covenant on Civil and Political Rights (ICCPR). [13] This statute makes it unlawful to discriminate against others both directly (when a person is treated unfairly) or indirectly (when something is fair in form but discriminatory in practice). [13] For example, indirect discrimination may occur in the workforce when employees are expected to comply with a condition or requirement of the job (i.e. height restrictions) but are unable to meet them because they are unreasonable or unfair. [14] [13] Compliance with anti-discrimination laws is enforceable through civil proceedings, which may result in heavy fines or penalties. These laws have been criticized for focusing too much on compensation and not enough on preventing discrimination from occurring. [13]

These anti-discrimination laws use substantive measures by promoting equal outcomes and implementing special measures identified in ICERD Article 1(4) to overcome discrimination. Private actors, organizations, and governments use special measures in the form of affirmative action programs to ensure disadvantaged individuals are given the same outcomes as everyone else. The Australian government has identified women, Aboriginal and Torres Strait Islanders, people with disabilities, and non-English speaking migrants as high-priority groups for the administration of special measures programs. [3] The Northern Territory government has recognized Aboriginal and Torres Strait Islanders, and people with disabilities as high-priority groups for their affirmative action programs by focusing on employment outcomes and employment representations for these groups. [3] These programs use substantive measures as they acknowledge that there is a need to treat people differently by prioritizing these groups as they have been unfairly discriminated upon. For example, in 2011 the Australian Bureau of Statistics reported that Indigenous peoples were 3 times more likely to be unemployed than non-indigenous people. [15] This demonstrates the need for affirmative action policies to protect and advance the lives of Aboriginal people, as they do not have the same outcomes of employment. [15]    

European Union

The substantive equality embraced by Court of Justice of the European Union focuses on equality of outcomes for group characteristics and group outcomes. [7]

Notable cases

Canada

R v Kapp 2008 SCC 41

The case of R v Kapp was instrumental in shifting the focus from formal equality to substantive equality in Canadian jurisprudence. In 1998, the Canadian government granted a communal fishing license exclusively to members of three Aboriginal bands for a period of 24 hours in the Fraser river that allowed them the right to fish and sell their catch. [16] The appellants consisted mainly of a group of non-Aboriginal commercial fishermen who protested against the license and were subsequently charged with fishing at a prohibited time. [16] The fishermen argued that they were being unfairly discriminated against on the basis of race under section 15(1) of the Canadian Charter of Rights and Freedoms. [16] However, the Crown upheld the decision that the government did not violate section 15 of the charter, [16] and found that decision could not be discriminatory as section 15(1) and 15(2) work together to prevent discrimination and protect vulnerable individuals in society. [17] Section 15(1) aims to prevent discrimination against marginalized and disadvantaged groups, while section 15(2) aims to combat discrimination through affirmative action. [17] The Crown dismissed the appeal as under section 15(2) the Government has the power to implement affirmative action programs in order to advance the aboriginal bands access to jobs and resources. [18] The law can be understood as using substantive measures in R v Kapp as it recognizes that equal treatment (formal equal opportunity) does not result in the same opportunities across groups. [16] [17] Instead, the law acknowledged that substantive equality is necessary to ensure the development of disadvantaged and marginalized individual's access to equality of outcomes.

New Zealand

Z v Z (no 2) (1997) 2NZLR 258 (CA)

The case of Z v Z highlighted the issues with equal sharing of relationship property at the end of a relationship. In this case, the couple had been married for 28 years. [19] During this time the primary caregiver Mrs Z gave up her career to care for the couple's children. [19] At the end of the relationship, the couple had a property valued at NZ$ 900,000. Mr Z was on a salary of over $300,000 per annum, while Mrs Z received $7,000 in assistance from the government. [19] In Z v Z, the court failed to protect the primary caregiver by not taking into account her future earning capacity and her past sacrifices. [19] The Property (relationships) Amendment Act (2001) was introduced to rectify the problems of equal sharing highlighted in Z v Z. [19] The property act uses substantive equality to recognize that equal treatment can lead to disadvantage. The act recognizes the impact relationships can have on the earning capacities of individuals and it aims to place them in more substantive position at the end of the relationship. [19] However, the property act has been criticized for its ability to achieve substantive equality, as it does not state how economic disparity should be quantified. [19] Scholars have argued that it does not protect the most vulnerable as it is skewed towards relationships with high incomes because it is more difficult to establish an economic disparity in lower income cases. [19]

Criticism

Substantive equality has been criticized in the past for its vague definition and its tenuous ability to help combat discrimination for marginalized and disadvantaged individuals. [8] Scholars have argued that the meaning of substantive equality remains elusive, which makes it difficult to implement change due to the lack of consensus. The meaning of equality itself has been labeled as subjective as there are too many conflicting opinions within society to find one underlying definition. [8] [12] Substantive equality has also been criticized for its lack of ability to protect individuals from discrimination and for placing too much emphasis on compensation rather than preventing discrimination from occurring. [13] Welfare and affirmative action programs have been recognized as areas of concern, as the way in which they are delivered can be discriminatory in nature because they can reinforce and perpetuate stigmas that are held within society. [8] Substantive equality is a well contested concept in which scholars, nations, and the law must work together in order to agree on a definition and appropriate framework for implementation. [8]

See also

Related Research Articles

<span class="mw-page-title-main">Discrimination</span> Prejudicial treatment based on membership in a certain group

Discrimination is the process of making unfair or prejudicial distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong, such as race, gender, age, species, religion, physical attractiveness or sexual orientation. Discrimination typically leads to groups being unfairly treated on the basis of perceived statuses based on ethnic, racial, gender or religious categories. It involves depriving members of one group of opportunities or privileges that are available to members of another group.

Egalitarianism, or equalitarianism, is a school of thought within political philosophy that builds on the concept of social equality, prioritizing it for all people. Egalitarian doctrines are generally characterized by the idea that all humans are equal in fundamental worth or moral status. As such, all people should be accorded equal rights and treatment under the law. Egalitarian doctrines have supported many modern social movements, including the Enlightenment, feminism, civil rights, and international human rights.

Affirmative action refers to a set of policies and practices within a government or organization seeking to benefit marginalized groups. Historically and internationally, support for affirmative action has been justified by the idea that it may help with bridging inequalities in employment and pay, increasing access to education, and promoting diversity, social equity, and social inclusion and redressing alleged wrongs, harms, or hindrances, also called substantive equality.

<span class="mw-page-title-main">Equality of outcome</span> Political concept

Equality of outcome, equality of condition, or equality of results is a political concept which is central to some political ideologies and is used in some political discourse, often in contrast to the term equality of opportunity. It describes a state in which all people have approximately the same material wealth and income, or in which the general economic conditions of everyone's lives are alike.

Equal opportunity is a state of fairness in which individuals are treated similarly, unhampered by artificial barriers, prejudices, or preferences, except when particular distinctions can be explicitly justified. For example, the intent of equal employment opportunity is that the important jobs in an organization should go to the people who are most qualified – persons most likely to perform ably in a given task – and not go to persons for reasons deemed arbitrary or irrelevant, such as circumstances of birth, upbringing, having well-connected relatives or friends, religion, sex, ethnicity, race, caste, or involuntary personal attributes such as disability, age.

The Independent Commission on Policing for Northern Ireland was established in 1998 as part of the Belfast Agreement, intended as a major step in the Northern Ireland peace process. Chaired by Conservative politician and the last Governor of Hong Kong Chris Patten, it was better known as the Patten Commission and it produced a report in 1999 known as the Patten Report. The other members of the Commission were Maurice Hayes, Peter Smith, Kathleen O'Toole, Gerald W. Lynch, Sir John Smith, Lucy Woods and Professor Clifford Shearing. The Secretary to the Commission was Bob Peirce, who drafted the report.

Section 15 of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution of Canada, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs.

<span class="mw-page-title-main">Anti-discrimination law</span> Legislation designed to prevent discrimination against particular groups of people

Anti-discrimination law or non-discrimination law refers to legislation designed to prevent discrimination against particular groups of people; these groups are often referred to as protected groups or protected classes. Anti-discrimination laws vary by jurisdiction with regard to the types of discrimination that are prohibited, and also the groups that are protected by that legislation. Commonly, these types of legislation are designed to prevent discrimination in employment, housing, education, and other areas of social life, such as public accommodations. Anti-discrimination law may include protections for groups based on sex, age, race, ethnicity, nationality, disability, mental illness or ability, sexual orientation, gender, gender identity/expression, sex characteristics, religion, creed, or individual political opinions.

Disparate impact in the law of the United States refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, even though rules applied by employers or landlords are formally neutral. Although the protected classes vary by statute, most federal civil rights laws consider race, color, religion, national origin, and sex to be protected characteristics, and some laws include disability status and other traits as well.

Substantive rights are basic human rights possessed by people in an ordered society and include rights granted by natural law as well as substantive laws. Substantive rights involve a right to the substance of being human, rather than a right to a procedure to enforce that right, which is defined by procedural law. One example of substantive right is substantive equality. Substantive equality is concerned with equality of outcome for all subgroups in society including disadvantaged and marginalized groups. Substantive rights are contrasted with procedural rights, which are purely formal rules of law that only prescribe how a law ought to be enforced, rather than defining the outcome of a law. One example of procedural rights is formal equality of opportunity.

<span class="mw-page-title-main">Affirmative action in the United States</span>

In the United States, affirmative action consists of government-mandated, government-approved, and voluntary private programs granting special consideration to groups considered or classified as historically excluded, specifically racial minorities and women. These programs tend to focus on access to education and employment in order to redress the disadvantages associated with past and present discrimination. Another goal of affirmative action policies is to ensure that public institutions, such as universities, hospitals, and police forces, are more representative of the populations they serve.

Employment equity, as defined in federal Canadian law by the Employment Equity Act, requires federal jurisdiction employers to engage in proactive employment practices to increase the representation of four designated groups: women, people with disabilities, visible minorities, and Indigenous peoples.. The act states that "employment equity means more than treating persons the same way but also requires special measures and the accommodation of differences".

Symbolic racism is a coherent belief system that reflects an underlying one-dimensional prejudice towards a racialized ethnicity. Symbolic racism is more of a general term than it is one specifically related to prejudice towards black people. These beliefs may cause the subject to discriminate against black people and to justify this discrimination. Some people do not view symbolic racism as prejudice since it is not linked directly to race but is indirectly linked through social and political issues.

<i>R v Kapp</i> 2008 Supreme Court of Canada decision

R v Kapp, 2008 SCC 41, is a Supreme Court of Canada decision that held that a communal fishing license granted exclusively to Aboriginals did not violate Section 15 of the Canadian Charter of Rights and Freedoms. The case stemmed from an appeal by John Michael Kapp and a group of non-aboriginal commercial fishers who staged a "protest" fishery with the intention of being charged by law enforcement and challenging the constitutional status of an exclusive Aboriginal commercial fishing license.

The Declaration of Principles on Equality reflects a moral and professional consensus among human rights and equality experts done in December 2008. It contains 27 principles that establish a new paradigm on equality, drawing on established and emerging principles of international law. It has been described by the High Court of Delhi as reflecting the ‘current international understanding of Principles on Equality.’

<span class="mw-page-title-main">Social equality</span> Comparable status amongst peoples about certain respects

Social equality is a state of affairs in which all individuals within society have equal rights, liberties, and status, possibly including civil rights, freedom of expression, autonomy, and equal access to certain public goods and social services.

The "comparator group" is an element that has been used in Canadian jurisprudence to analyze statutory human rights complaints and claims pursuant to section 15 of the Canadian Charter of Rights and Freedoms. Section 15 guarantees equality rights and the right to be free from discrimination on certain enumerated grounds.

<span class="mw-page-title-main">2020 California Proposition 16</span> Measure to undo the states ban on affirmative action

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Article 14 of the European Convention on Human Rights lists the prohibited grounds against which discrimination in illegal. The text states that

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

<i>Minister of Finance v Van Heerden</i> South African legal case

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References

  1. ↑ "Brazil fashion week goes equal opportunity". The Daily Telegraph. June 20, 2009. Retrieved 2011-09-08.
  2. 1 2 3 Cusack, Simone; Ball, Rachel (July 2009). Eliminating Discrimination and Ensuring Substantive Equality (PDF) (Report). Public Interest Law Clearing House and Human Rights Law Resource Centre Ltd. Archived from the original (PDF) on 2022-06-06.
  3. 1 2 3 4 5 "What is substantive equality?" (PDF). Equal Opportunity Commission, Government of Western Australia. November 2014. Retrieved 28 October 2018.
  4. ↑ "systematic discrimination". Archived from the original on 2019-01-19. Retrieved 2018-11-20.
  5. 1 2 Mitchell, Ben (2015). Process Equality, Substantive Equality and Recognising Disadvantage Constitutional Equality Law. Irish Jurist. 53: 36-57.
  6. ↑ special measures
  7. 1 2 De Vos, Marc (2020). "The European Court of Justice and the march towards substantive equality in European Union anti-discrimination law". International Journal of Discrimination and the Law. 20 (1): 62–87. doi:10.1177/1358229120927947.
  8. 1 2 3 4 5 6 7 8 9 10 11 12 13 Fredman, Sandra (2016-04-16). "Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights" (PDF). Human Rights Law Review. 16 (2): 273–301. doi:10.1093/hrlr/ngw001. ISSN   1461-7781. S2CID   148303122. Archived from the original (PDF) on 2020-02-12.
  9. ↑ Ely, John Hart (1980). Democracy and distrust : a theory of judicial review. Cambridge: Harvard University Press. ISBN   978-0674196360. OCLC   5333737.
  10. 1 2 3 4 Goonesekere, Savitri W.E (2011). The Concept of Substantive Equality and Gender in South East Asia. United Nations Entity for Gender Equality and the Empowerment of Women.
  11. ↑ Whelehan, Imelda (1 June 1995). Modern Feminist Thought: From the Second Wave to 'Post-Feminism'. Edinburgh University Press. doi:10.1515/9780748632084. ISBN   978-0-7486-3208-4.
  12. 1 2 Law commission of Ontario (2012). Principles for the Law as it Affects Persons with Disabilities. Law commission of Ontario. ISBN   978-1-926661-38-4
  13. 1 2 3 4 5 6 7 Rees, Neil; Rice, Simon; Allen, Dominique (2018). Australian anti-discrimination and equal opportunity law. Federation Press. ISBN   9781760021559. OCLC   1005961080.
  14. ↑ indirect discrimination
  15. 1 2 Dillon Sarah, Nissim, Rivkah (2015). "Targeted Recruitment of Aboriginal and Torres Strait Islander People: a Guideline for Employers". Australian Human Rights Commission. ISBN   978-1-921449-75-8
  16. 1 2 3 4 5 Moreau, Sophia (2009). "R. V. Kapp: New Directions for Section 15" (PDF). Ottawa Law Review. 40 (2): 283–299.
  17. 1 2 3 TREMBLAY, LUC B. (2012). "Promoting Equality and Combating Discrimination Through Affirmative Action: The Same Challenge? Questioning the Canadian Substantive Equality Paradigm". The American Journal of Comparative Law. 60 (1): 181–204. doi:10.5131/AJCL.2011.0025. JSTOR   23251953.
  18. ↑ Richez, Emmanuelle (2013). "The Case of Canada". Australian Indigenous Law Review. 17 (2): 26–46. JSTOR   26423266.
  19. 1 2 3 4 5 6 7 8 Garland, Fae (2014-11-01). "Section 15 Property (Relationships) Act 1976: Compensation, Substantive Equality and Empirical Realities: English". New Zealand Law Review. 2014 (3): 355–381. ISSN   1173-5864.
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